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Service Tax - Case Laws

Showing 201 to 205 of 205 Records

• 2017 (4) TMI 39 - CESTAT NEW DELHI
  

  Valuation of taxable service - clearing and forwarding agent service - whether reimbursable expenditures like ground rent, telephone, postal charges, electricity etc. on actual basis are be included in the taxable value? - Held that: - there is no dispute regarding these expenditures having been incurred by the appellant in terms of the agreement and also being reimbursed on actual basis by their client. The appellants are not disputing their service tax liability on the agency commission and remuneration received for providing C & F services - reliance placed in the case of Commissioenr of Serivde Tax, Chennai vs. Sangamitra services Agency [2013 (7) TMI 862 - MADRAS HIGH COURT], where Relying upon the judgment in the case of Sri Sastha Agencies Pvt Ltd., Vs. Asst. Commissioner reported in 2006(11)TMI 193- CESTAT, BANGALORE, wherein it is held that no element other than remuneration received by a Clearing & Forwarding agent from their principal was to be included in the taxable value of the service - appeal allowed - decided in favor of assessee.

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• 2017 (4) TMI 38 - CESTAT NEW DELHI
  

  Liability of tax in terms of the composition scheme of 2007 - Imposition of penalties u/s 77 and 78 - short payment of service tax - works contract - Held that: - the activities carried out by the appellants are taxable only w.e.f. 01/06/2007. In such situation, it is clear that their payment of tax in terms of composition scheme should be examined for correctness based on the said provisions only. It is seen that there is no format or prescribed specific procedure for exercising separate option under the scheme. After the introduction of new tax entry when the appellants discharged service tax in terms of the applicable provisions, it is clear their entitlement cannot be denied.

  The denial of composition scheme by the Original Authority is mainly on the ground that the appellant cannot exercise option under the scheme as the contracts were taxable under ‘commercial or industrial construction service’/’construction of complex service’ prior to 01/06/2007 and accordingly after 01/06/2007 they cannot opt for payment of service tax under works contract service under composition scheme - The reason for denial of the benefit recorded in the impugned order is not sustainable - also the imposition of penalties on the appellant is not justified.

  Appeal allowed - decided in favor of appellant.

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• 2017 (4) TMI 37 - CESTAT NEW DELHI
  

  Export of services - Refund claim - unutilised CENVAT credit - denial on the ground that the services provided by the appellant appear to fall under the category of ‘intellectual property service’ and not under ‘engineering consultancy service’ as claimed by the appellant and also on the ground that the services were rendered in India and cannot be categorized as export.

  Held that: - the services rendered by the appellant will fall under the category of taxable services provided or to be provided to any person by a consulting engineer in relation to advise, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hardware engineering [Section 65 (105) (g)]. We also refer to the trade notice of the Department dated 04.07.1997 which explained the scope of tax entry. We note that the appellants are not involved in any service of intellectual property and do not come in possession of any such IPR. The terms of the agreement do not provide for payment of any consideration for transfer of any such IP Rights. The appellants are engaged in providing consultancy with reference to licensed unit in India for and on behalf of foreign entity. As such, based on the location of the recipient of service, the service is to be considered as exported. The benefit of service accrues to a foreign company and the said company pays consideration for such service.

  Since consulting engineering service also is a category (iii) service as mentioned in Export of Services Rules, 2005, the location of recipient of service is relevant. As such, the appellants were engaged in providing services, which are exported out of country.

  The appellant’s eligibility to refund claim under Rule 5 of the Export of Services Rules, 2005 read with N/N. 12/2005- ST has to be examined - appeal allowed by way of remand.

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• 2017 (4) TMI 36 - CESTAT NEW DELHI
  

  Project management and marketing consultant - Business auxiliary service - period prior to 01.07.2003 - validity of SCN - Held that: - the SCN did indicate more than one service for tax liability of the appellant. The contract under which the considerations were received were composite and covers various activities. It is clear that split up figures for each one of the taxable service of different nature were not provided in the SCN. The same is possible only when documents with supporting evidence were submitted by the appellant. Such details could have been submitted even at the time of adjudication. The first Original order was passed ex-parte - The said order was set aside and the first appellate authority remanded the case for a fresh decision.

  Real Estate Consultant - Held that: - it is clear that the appellant did provide taxable service under the above category. As such, the appellants are liable to service tax under above said category during the relevant period.

  Extended period of limitation - Held that: - admittedly, the appellants raised various bills to Rajasthan Housing Board which indicated service tax element separately. Though, the appellants submitted that they did not receive the tax amount from their clients, the incidence of tax liability is apparently in the knowledge of the appellant and they have not got themselves registered with the Department, neither filed periodical returns. In the facts of this case, we find that a demand for extended period in terms of proviso to Section 73 (1) is rightly invokable.

  Penalty u/s 76 and 78 - invocation of section 80 - Held that: - The appellants though raised bill with service tax, have not received the tax amount from the Rajasthan Housing Board. This is being categorically asserted by the appellants and there is no contrary finding by the lower authority. As such, we find there is a reasonable cause for non-payment of service tax by the appellants and accordingly, the provisions of Section 80 can be applied for waiver of penalty imposed u/s 76 and 78.

  Appeal allowed - decided partly in favor of assessee.

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• 2017 (4) TMI 35 - CESTAT NEW DELHI
  

  Liability of service tax - Business Auxiliary Service - Manpower Recruitment or Supply Agency Service - Intellectual Property Right Service - Club or Association Service - Held that: - It is by now a settled principle that the services provided by the Club or Association to its members would not amount to service provided to another - reliance placed in the case of Sports Club of Gujarat Ltd. vs. Union of India [2009 (8) TMI 667 - Gujarat HIGH COURT] - the appellants are not liable to service tax under the category of Club or Association Service - demand not sustained.

  Business Auxiliary Service - Held that: - It is clear from the arrangement, that the appellant is conducting periodical MAT examination. Interested students pay the fee and write the examinations. The grades obtained by the student, as certified by the appellant help the students to get admission in the management institute. It helps the management institute also in selecting the right students for their course. The appellant is not acting on behalf of anybody while conducting the MAT examination. We find there is no provision of service on behalf of any client. As such, we hold no service tax can be levied on the examination fee collected by the appellant from the students for MAT examination - demand not sustained.

  Manpower recruitment or supply agency service - Held that: - the appellants are collecting charges from the organizations and there is no public service involved in conducting examination for recruitment of personnel for various organizations which included commercial public sector undertakings. As such, we are of the opinion that the services rendered by the appellants are liable to be taxed under manpower recruitment or supply agency service - however, such demand has to be confirmed only for the normal period covered by both the show cause notices. As already noted, the second show cause notice also invoked extended period which is legally unsustainable - demand sustained for normal period.

  Intellectual Property Right Service - It is the case of the appellant that the said contents are copy right materials and, as such, are excluded from the purview of tax entry of “intellectual property right” - Held that: - the royalty payment is admittedly for providing contents for the journal. It is not relating to right to intangible property like trade market designs, patterns or any other similar intangible property. Admittedly, the contents of the journal are copy right materials and, as such, are excluded from the tax liability under IPR service - demand not sustained.

  Extended period of limitation - SCN dated 23/04/2009 was issued covering the period 10/09/2004 to 31/03/2008. Another SCN on the same issues was issued on 24/10/2011 covering the period 2008-2009 to 2010-2011. The second SCN also was issued invoking extended period of demand - Held that: - repeat SCN on the same issue on similar set of facts cannot be issued invoking extended period of time. Such action is not legally sustainable - penalties set aside.

  Appeal allowed - decided partly in favor of assessee.

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